David Hallsworth considers whether the effects of the pandemic will lead to a surge in dental negligence claims.
Covid-19 ripped through society and has forced change across all aspects of healthcare for years to come. Even those fortunate not to have contracted the virus or suffer severely from its effects may still face consequences, with the pandemic placing non-emergency treatments and appointments on hold in the early days.
Having dealt with the enormous pressures brought on by the pandemic, medical practitioners are now facing the immense challenge of huge treatment backlogs; this is particularly true within dentistry. Despite some emergency dental clinics staying open during the initial lockdown, all nonemergency check-ups were put on pause – and it could have left patients and practitioners open to other serious risks later down the line
Although people of all ages missed out on routine visits to the dentist, it was children who saw the largest drop in the number of appointments, with figures for under 5s falling by 60 per cent, from 1.2m in 2019 to 468,000 in 2020.
This is particularly pertinent considering the risks for tooth decay in younger people. It is one of the leading contributions for hospitalisation amongst children, with many having to undergo surgery under general anaesthesia as a result. With many children having missed crucial checkups during the pandemic, it may lead to a large proportion of children suffering from the condition because of a failure to detect the early signs. It could lead to unnecessary pain or, in some cases, complicated conditions and loss of teeth.
When it comes to making personal injury claims relating to professional negligence, the injured party usually has a period of three years from the date of their injury to bring the claim before court. This three-year period is known as the primary limitation period. When it comes to children’s health, the primary limitation period only starts when they turn 18. Effectively, this means that a child has until their 21st birthday to bring forward a personal injury claim. It is therefore vital that dentists take precautionary measures and plan effectively with their insurance and indemnity providers in how to best deal with this future risk, given the lengthy claim time period we are looking at.
The pandemic may well have exacerbated existing dental issues amongst children. Since a large portion were unable to receive regular dental check-ups that they may have otherwise needed, especially a lack of access to aerosol generating procedures, dental practitioners could be at risk of claims relating to delays in treatment, long after the treatment in question occurred.
So, how will this risk affect dental practitioners and practice managers? In short, there may be a wave of professional negligence claims on the horizon, from individuals who believe delayed check-ups have severely affected their dental health.
If claims-made insurance for dental cover is purchased, a long retro-active date to cover historic treatments may well need to be considered. It offers protection on past events, including treatment of adults up to the age of 21 who bring claims relating to dental care provided when they were under the age of 18.
Recently, claims have started to be brought alleging that practice owners are vicariously liable for the dentists they engage, or that there had been a breach of a non-delegable duty of care. This is opposed to the historic norm of a claim being brought against the individual dentist who provided the allegedly negligent treatment. This could pose a threat to practice owners, as it is possible that claims made against practices may occur long after the practice owner has sold the business or retired. Additional difficulties arise if the treating dentist has left the practice, especially if the practice owner wants to seek to deflect the claim to the dentist or seek a contribution to any settlement.
Despite the pandemic causing unforeseen systemic changes within UK healthcare, claims for delayed treatment will still likely be brought. Some may argue that rather than falling on a dentist or practice manager’s doorstep, responsibility could lie with the NHS or the government; as the missed check-ups were due to the forced practice closures, surely the decision to delay treatments was out of practice’s control? Although this seems like a reasonable defence, it remains the case that the treatment would have been provided by the dentist and not the government, and therefore any claims would still probably be brought against them or the surgery where they were working. Even in the initial lockdown, which lasted three months, dentists were available for emergency treatment through dental hot clinics. If a claim is made in relation to a delay in treatment during the initial lockdown it would need to be considered if there was a defence in it being redirected elsewhere.
It also isn’t solely delays to younger patients that could leave dentists and practices exposed to claims. All claims are assessed on a case-by-case basis, so it is possible that adults who also experienced missed check-ups or were unable to access dental treatment during the various lockdowns, which led to avoidable dental damage, may pursue claims for damages. It is crucial then, that practitioners review their dental insurance policies to ensure they have suitable cover for future claims.
The impact of the pandemic has placed the dental sector in a precarious position, even as it resumes treatments in a more routine way and embarks upon recovery. With this claim landscape shadowing over dental practitioners, it is crucial that policies are reviewed to ensure suitable cover is in place to prepare for this potentially costly future risk.